We, as plaintiff’s lawyers, need to let our jurors understand that they can and should allow money for non-economic damages. We also need to teach our jurors how to calculate these non-economic damages. We begin educating our jurors on this point in opening argument where we tell jurors that there are these non-economic damages and that we will teach them how to calculate these non-economic harms and losses later in trial. When we get to closing arguments we will again reference these damages and how to calculate these harms and losses. Trial consultant David Ball suggests that we do this by first dividing the intangible damage, such as pain, into three different categories. The first is the severity of the pain, the second being the duration of the pain, and the third being the amount of interference of one’s lifestyle caused by the pain.
To do this, you can begin by discussing the severity of the pain and how much money should be allowed for that level of pain. You can start by just discussing levels of pain generally without any reference to your present case. So talk a little about low levels of pain, use some examples, and then throw out a number that might be sufficient to make up for that level of pain. You can then go on to describe an example of mild pain, then throw out a dollar figure that might be reasonable for making up for this mild level of pain. Finally describe severe pain. Describe how much money might be needed to make up for a severe level of pain and grief. After you generically go through these different levels of pain and the amount of money that should be allowed given that level of pain begin talking about your client’s pain in particular. Where does the plaintiff’s pain fit into this pain scale? You can then suggest an amount of money that would be sufficient to make up for your client’s pain. If your client has multiple injuries, say her ankle is injured along with her back then you will need to describe the severity of your client’s ankle pain followed by describing her level of back pain. Have the jurors assign one sum of money for the ankle and then another for the back injury. In this way, you are breaking down the injury into its various parts which will assist the jurors in valuing the injury.
You will then use this same system for explaining the duration of the pain. Describe pain that only lasts a short period of time, perhaps a few weeks or months, then give the jurors a dollar figure sufficient for that type of pain duration. Then go on to talk about pain that lasts a year or so, describe what amount of money jurors should allow for pain that lasts this long. Finally, go on to describe pain that lasts for many years, perhaps indefinitely. Pain that will perhaps even get worse with time. Put a dollar figure on this pain. As you describe both the severity of the pain and then go on to describe various durations of pain use a chart or diagram as a visual aid. It is always good to use visual demonstrations whenever possible. Since you have already described the level of pain your client is suffering from you can now put a dollar figure on each duration of pain based on the same level of pain in which your client is enduring. Thus on your chart you will have three different durations of time associated with the level of pain your client is suffering from. You can put a different amount of money next to each durational category associated with your client’s level of pain. Be sure to tell the jurors and to write on your chart that this is the amount of money the jurors should consider awarding beyond what the amount of money the jurors will already be allowing for economic damages.
After you get through describing the amount of money that is reasonable for each level and duration of pain you can then go on to the last category. Here, again you will be talking about how the pain interferes with plaintiff’s lifestyle. Give some examples of what might be a small level of interference. Then go on to describe some examples of mid-level interference followed up by some examples of a high level of interference. Then describe some of the things that your client can no longer do. Explain where the plaintiff’s injury goes on the interference scale. Put a dollar figure on this amount of interference. Then you can add this dollar amount onto the number that you already came up with for both severity of pain as well as duration of pain. You have now given your jurors a method for calculating non-economic damages.
There will be times when your client will be in part responsible for their injuries. When this is the case be sure to come out and admit as much to the jurors. In this way you build credibility with your jurors. Always error on the side of being more honest with your jurors then less. Thus don’t try to hide the ball, just come out and tell your jurors that you believe your client had some fault here. You need to indicate how much fault and typically by way of a percentage. So indicate that your client was 25% at fault or whatever it might be. In this way the jurors can reduce the total verdict amount by your client’s percentage of fault in the injury. If the judge is the one who is responsible for reducing the verdict amount by the amount of comparative fault, as decided by the jurors, then be sure to instruct your jurors as to what their job is and what the judge’s job is. They need to understand that the judge is the one who will be reducing the verdict amount not the jury. Their only job is to determine the amount of comparative fault. If your jurors don’t understand this you run the risk that the jurors will take it upon themselves to reduce the verdict amount in proportion to the amount of comparative fault they find only to be followed up by the judge then reducing this already reduced verdict amount once again by the level of comparative fault. Educate your jurors.
In addition to educating your jurors on a method for calculating non-economic damages you also want to educate them on the importance of awarding non-economic damages. You need to teach your jurors that this non-economic amount which consists of pain, suffering, and disability is the biggest harm of all in the case. A visual aid makes for an excellent resource in this regard. David Ball suggests that you use a pie chart. Part of the pie can consist of medical expenses and lost income. The other part of your pie chart can consist of the non-economic damages. Make sure that the non-economic part of your pie chart is the biggest slice of the pie. In this way you visually impress upon your jurors that they need to be allowing at least as much if not more money for non-economic damages as they will allow for economic damages. You need to thus be teaching this theme throughout trial. Teach your jurors that the pain, suffering, and disability are the worst harm of all as they cannot be fixed.
At some point, you are going to need to make a determination as to how much to ask for your client’s injuries. To determine this amount you need to be running focus groups. You need to run focus groups anyway in order to determine how to put on your trial. Within your focus group ask your participants what they think each injury is worth. Then when you go into trial ask for some value a bit higher than the largest amounts you get in your focus groups. Of course when you are in trial let your jurors know what your suggestion is but that your suggestion is not a cap, that the jurors can allow more money if they feel it is warranted.
I wrote this short essay/blog primarily for my, Eric Roy, and my staff’s benefit. Most of the information above comes from legendary trial consultant David Ball. He has multiple publications which provide a plethora of information. He also tours around the country with Don Keenan who is currently one of the best trial attorneys in the country. Their seminars are exceptional.